State ex rel. Smith v. Clarkson

BLAND, P. J. The ground which appellant alleged in his motion and on which he relies to have the judgment vacated and he be permitted to make his defense to the tax suit is, that the court, in rendering the judgment and overruling a special execution for the sale of the land, committed an error of fact and had no jurisdiction of the person of the defendant. That a writ of error coram nobis will lie when the court has committed an error of fact vital to its jurisdiction, when said error does not appear upon the face of the proceeding, is well-settled law. Craig v. Smith, 65 Mo. 536; State ex rel. v. White, 75 Mo. App. 257; State ex rel. v. Horine, 63 Mo. App. 1; Dugan v. Scott, 37 Mo. App. 663. And the usual way of bringing such [558] a matter before the court is by motion supported by affidavit. Neenan v. St. Joseph, 126 Mo. 89; Ex parte Gray, 77 Mo. 161. The evidence is undisputed that appellant was a resident of this State, and that'he was described in his deed (as recorded), to be a resident of Randolph county, Missouri. Had the officers of the law, entrusted with the enforcement of tax liens in Howell county, been guided by what was before them, appellant could and would have been personally served with summons and had his day in court. Instead of affording him this . opportunity, that method of procedure was adopted, which the statutes provide for, whereby a valid judgment was obtained against the appellant for the non-payment of taxes assessed against his lands, without actual notice to him. It is alleged in the petition in the tax suit that the appellant was a nonresident of the State. This allegation made it the duty of the clerk of the Howell Circuit Court to make an order of publication in vacation (section 9303 of the revenue .law and section 575 of the code of civil procedure, Revised Statutes 1899). This order of publication was duly published and proven. In Tooker v. Leake et al., 146 Mo. l. c. 429, speaking of a similar order made in a tax case under- like circumstances, the court, through Brace, J., said: “When so published and the publication proved, the defendants in said action are as effectually served with process as if served by summons, and a final judgment rendered on such service is just as conclusive as a judgment rendered upon service of summons, except that the defendant in the former case may within three years after the rendition thereof have the same reviewed and set aside for good ■cause as provided in Revised Statutes 1889, section 2217, et seq.” Whether appellant had paid the $3.30 taxes sued for does not appear from the evidence, but if he had paid the tax, the fact would be wholly unavailing in this proceeding to impeach the jurisdiction of the court or to in anywise effect the [559] validity of its judgment. Jones v. Driskill, 94 Mo. 190; Allen v. McCabe, 93 Mo. 138. It sufficiently appears from tbe evidence that appellant was a resident of the State when the suit was brought, but we do not see how this fact impeaches the jurisdiction of the court to render the judgment. Jurisdiction was acquired of the res by the making, publishing and proof of the order of publication, and it was against the res only that the judgment was rendered. To render judgment against the land, the jurisdiction was as effectually conferred as if the appellant had been personally served with process. Tooker v. Leake, supra; Cruzen v. Stephens, 123 Mo. 337; Gibbs v. Southern, 116 Mo. 204; Payne v. Lott, 90 Mo. 676; Schmidt v. Niemeyer, 100 Mo. 207. And the proof that appellant was a resident of the State did not prove nor tend to prove that the court committed an error of fact in the rendition of the judgment, fatal to its validity. Appellant yet has his remedy to set aside the judgment by default against him under the provisions of section 777, R. S. 1899; or against the collector on his bond if he willfully and knowingly made a false statement in his petition for the purpose of procuring the order of publication. The judgment is affirmed. All concur.